Opinion
CASE NO. 07-80378-CIV-DIMITROULEAS.
September 28, 2010
ORDER ADOPTING REPORTS OF MAGISTRATE JUDGE
THIS CAUSE is before the Court upon the Plaintiff Heath Bleecher's Emergency Motion for Evidentiary Hearing [DE 26], Emergency Motion for Protective Order or in the Alternative a Court Ordered Injunction [DE 27], Motion for Order of Sanctions against Nightingale Nurses a Florida L.L.C. and Allan H. Weitzman Esq. [DE 29], Motion to Vacate Judgment and Motion to Set Aside Stipulation [DE 31], Motion for Order of Sanctions against Cathleen Scott Esq. and Cathleen Scott P.A. [DE 33], and the Reports and Recommendations of Magistrate Judge Lurana S. Snow, dated September 8, 2010 [DE 66] and September 10, 2010 [DE's 67 and 68]. Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of the entire court record herein, including the underlying motions, the Reports and Recommendations, Plaintiff's Consolidated Objections to the Magistrate Judge's Reports and Recommendations [DE 75], and is otherwise fully advised in the premises.
The Complaint in this action was filed May 1, 2007, by Heath Bleecher on behalf of all others similarly situated, alleging violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207, et seq., for failure to pay overtime wages. [DE 1]. On August 24, 2007, counsel for the parties filed a stipulation of dismissal without prejudice. [DE 24]. The Court issued an Order dismissing the case without prejudice and closed the case. [DE 25]. Over two years later, on November 2, 2009, Plaintiff filed the instant motions to vacate the judgment, for a hearing, for injunctive relief, and for sanctions. Upon review of the motions and the record, the Court agrees with the Magistrate Judge's reasoning and recommendation that this Court should deny the Plaintiff's motions in their entirety.
In Plaintiff's Consolidated Objections to the Magistrate Judge's Reports and Recommendations [DE 75], Plaintiff objects to the Magistrate's Report on several grounds. The majority of Plaintiff's objections merely continue to dispute the accuracy of the facts set forth in the affidavit of Cathleen Scott. However, the Magistrate sufficiently addressed Plaintiff's contentions of alleged discrepancies in her Reports, and the Court agrees with the Magistrate's conclusions therein. Plaintiff also objects to the Court's failure to consider the merits of his whistleblower claim. The Court agrees with the Magistrate that Plaintiff's whistleblower claim is not relevant to his motion to vacate the order of dismissal without prejudice of his FLSA claim for failure to pay overtime wages. Moreover, Plaintiff' Consolidated Objections fail to challenge the Magistrate's conclusion that neither the alleged fraud by Defendant nor the alleged fraud by Scott deprived the Plaintiff of his day in court on his FLSA claim, since the claim was dismissed without prejudice, which did not foreclose Plaintiff's ability to vindicate any remaining FLSA claim he may have had. See Perez-Nunezv. North Broward Hospital District, 609 F.Supp.2d 1319, 1320-21 (S.D. Fla. 2009) ("If the dismissal sought by the Parties were without prejudice, the Court would agree that approval would not be necessary, since Plaintiff would not be foreclosing her ability to vindicate any FLSA claim she may have by refiling at a later time"); Kerr v. Powerplay Arcade, Inc., 2007 WL 3307091 at *1 (M.D. Fla. 2007) (explaining that, where "case is being dismissed without prejudice, there will be no final adjudication on the merits" and no settlement or resolution of FLSA claims for the court to review for fairness). Accordingly, upon review of the Motions, Reports, and Objections, the Court agrees with the reasoning and recommendations of the Magistrate that Plaintiff's motions should be denied.
Based upon the foregoing, it is ORDERED AND ADJUDGED as follows:
1. The Magistrate Judge's Reports [DE's 66, 67, and 68] are hereby ADOPTED and APPROVED;
2. The Plaintiff's Consolidated Objections to the Magistrate Judge's Reports and Recommendations [DE 75] are hereby OVERRULED;
3. Plaintiff's Emergency Motion for Evidentiary Hearing [DE 26] is hereby DENIED;
4. Plaintiff's Emergency Motion for Protective Order or in the Alternative a Court Ordered Injunction [DE 27] is hereby DENIED;
5. Plaintiff's Motion for Order of Sanctions against Nightingale Nurses a Florida L.L.C. and Allan H. Weitzman Esq. [DE 29] is hereby DENIED;
6. Plaintiff's Motion to Vacate Judgment and Motion to Set Aside Stipulation [DE 31] is hereby DENIED;
7. Plaintiff's Motion for Order of Sanctions against Cathleen Scott Esq. and Cathleen Scott P.A. [DE 33] is hereby DENIED.DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida.